RI Faces Possible Fines For DD Noncompliance

Federal Building, Providence, RI

By Gina Macris

For a second time, the state of Rhode Island is facing multi-million dollar fines for non-compliance with a 2014 consent decree which seeks to enforce the rights of adults with developmental disabilities to live regular lives in their communities

The state was in the same position about this time last year, when the U.S. Department of Justice (DOJ) had asked Chief Judge John J. McConnell, Jr. of the U.S. District Court to find Rhode Island in contempt of court and impose penalties of up to $1.5 million a month.

Instead, the state produced a multi-faceted “action plan” approved by the Court last October to meet the requirements of the consent decree by the time its term expires on June 30, 2024.

But now, an independent court monitor says the state has not understood the urgency of the situation and has failed to meet the expectations of the court-ordered action plan, particularly in recruiting a sufficient number of direct care workers needed to implement a community-based system of services.

McConnell has scheduled a private conference with lawyers in the case for Oct. 11.

The monitor, A. Anthony Antosh, said a filing Sept. 1 that the judge will consider levying fines retroactive to Sept. 1 unless the state can convince him, in yet another plan, that it can step up recruitment to meet compliance deadlines. That three-page report amended a much lengthier analysis Antosh delivered earlier in the week.

As each month goes by, compliance becomes more difficult.

By July 1, 2023, ten months from now, the state must pull together an adequate workforce, sufficient funding, and new individualized community-oriented services system-wide to have a shot at full compliance by June 30, 2024, Antosh said.

The new system will have to be fully operational for at least a year before the DOJ agrees to end federal oversight, according to DOJ statements in past consent decree hearings.

With less than two years remaining in the decade-long term of the agreement, the state’s capacity to fully implement consent decree requirements “continues to be limited,” Antosh said in a report to the Court Aug. 29.

Antosh said the state has “failed to realize the urgency and scope of effort needed” to address a shortage of 1081 direct care workers – roughly a third of the workforce that would be necessary to implement a community-based system of services.

Antosh’s analysis focused on remedial steps Judge McConnell ordered in the state’s 2021 action plan to push the state along in reforming the disabilities system after it had failed to meet earlier goals.

In the plan, filed last Oct. 19, the state agreed to hire an outside consultant to “coordinate and implement an intensive statewide recruitment initiative” to expand the ranks of frontline caregivers.

Six months passed without progress in selecting a recruitment consultant, Antosh said. On May 3, Judge McConnell issued a court order spelling out a numerous recruitment-related activities that were to take place over the summer and deadlines for pulling in potential new-hires.

While the state has begun in recent weeks to implement several activities, Antosh said that as of mid-August, “the Court has not received a comprehensive plan that addresses all the required components” of the recruitment and retention initiative.

In the supplementary report filed Sept. 1, Antosh said he had spoken to more than 50 people involved in workforce recruitment and found consistent criticism about

• long delays in implementation of the plan

• a lack of clarity about its intent and outcomes

• a lack of connectivity between various activities involved in the overall plan

Antosh noted that the state, in its request for proposals to hire a consultant to speed the hiring process, did not require the successful bidder to supplement the recruitment efforts of the private service agencies or families who self-direct individual service programs.

The state’s $326,500 contract with the successful bidder, Sage Squirrel Consulting, specifies that it will “develop and establish statewide mechanisms for ongoing recruitment, onboarding, training and retention of Direct Support Professionals (DSPs)” for the system serving adults with intellectual and developmental disabilities.

Antosh, in his supplemental report Sept. 1, reiterated that the outside consultant hired by the state must become involved in recruitment and must coordinate with private service provider and families who seek workers for individually-designed service programs.

He spelled out detailed requirements of a revised recruitment plan which he expects the state to finalize by Oct. 7, four days before the lawyers in the case meet with the judge.

Provider agencies working on their own to close the gap of 1081 workers needed to implement the consent decree have made little recruitment progress on their own, Antosh concluded in his Aug. 29 report.

Between July and December, 2021, 32 agencies responding to a survey added a total of 131 people to their combined workforce. More recent figures are not yet available.

All together, the agencies still reported they had 618 vacancies, including 390 full-time positions and 228 part-time posts.

Of 350 front-line supervisors, 160 worked overtime to cover direct care shifts that otherwise would be unstaffed.

Antosh devoted attention to the staff woes of families who directed their own program of services for a loved one with developmental disabilities. Since 2017, their number has doubled, from 489 to 976. And this sector is expected to continue growing as more teenagers move into the adult service system in the future.

One factor in the growth of self-direction is that provider agencies are serving fewer numbers of people than they did before the COVID-19 pandemic. About two thirds of service providers licensed by the state reported turning away clients or declining referrals during the last half of 2021, according to Antosh’s report.

In two meetings, Antosh said, families “described their fear of imminent crisis if one or two of their primary staff depart.”

A total of 178 families responding to a survey reported having 416 support staff and 213 job openings, for a vacancy rate of almost 34 percent.

The families also had concerns about an inability to provide time for staff to participate in professional development and the lack of funding for medical or dental benefits – an important tool in recruiting and retaining workers. Without agency-level overhead, they are able to pay their workers an average of $19.94, or nearly $4 an hour more than the average starting pay at a licensed provider organization.

RI Misses First Deadline in DD 'Action Plan'

By Gina Macris

A week has passed since the state of Rhode Island was to have awarded a contract for a review of the rates it pays private providers of developmental disabilities services – the first step in an “Action Plan” for correcting long-standing civil rights violations.

The plan, approved by Chief Judge John J. McConnell, Jr. of the U.S. District Court, avoided a contempt hearing and the risk of heavy fines.

The Action Plan says the contract would be awarded Nov. 1, and work would begin Nov. 15.

But on the morning of Nov. 9, the state’s website for the Division of Purchases indicated that the bids were still under review.

A total of five consulting agencies submitted bids. They are Guidehouse, Inc., Health Management Associates, Inc.; Mercer Health and Benefits LLC, Milliman, and Public Consulting Group. The rate review is considered the foundation for changes that would overhaul the service system to promote inclusion of adults with developmental disabilities in their communities - a transformation intended to comply with the Americans With Disabilities Act and a 2014 consent decree.

The bid amounts have not been disclosed, nor has the state made public its budget for the work, which is projected to take about a year.

Asked about the amounts the five firms bid, a spokesman for the state Department of Administration said in a statement late last month:

“As this in an RFP, (request for proposals) the proposals will undergo the technical and cost evaluation review. We cannot comment on the cost until an award is made, nor do we have an estimate when that will happen.”

Efforts to reach several state officials for comment on the delay in awarding the contract were not immediately successful.

In the last two and a half years, the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) has spent more than $1 million on an analysis of the developmental disabilities system by the New England States Consortium Systems Organization (NESCSO).

NESCSO, which worked 18 months on the project, was instructed to develop various scenarios for change but told not to make any recommendations. The BHDDH director at the time of the contract award, Rebecca Boss, said the work was intended to expand the department’s analytical capability.

Since the project was completed in 2020, BHDDH has not had any public comment on the work.

RI Dodges Contempt With DD Action Plan

By Gina Macris

The Chief Judge of the U.S. District Court welcomed Rhode Island’s action plan to turn around the lives of adults with developmental disabilities, saying in a hearing Oct. 20 that the state has taken “historic and comprehensive” measures to set it on a path to comply with a 2014 civil rights consent decree.

Judge John J. McConnell, Jr. (left) approved the plan, which commits at $50 million in the next few years to stabilize and expand a skilled workforce and promises a structural overhaul of the way services are delivered and providers are paid, according to summaries provided by a lawyer for the state and an independent court monitor.

“This a major step in improving the lives” of adults with developmental disabilities, McConnell said in the hearing, which was streamed remotely via the Internet.

McConnell said that in his 30 years as a lawyer and ten years on the bench, he’s “never seen the state move as quickly, effectively and positively.”

“Make no mistake about it. Moving that mountain was a mammoth undertaking,” McConnell said.

“You have my thanks,” he said, singling out State Sen. Louis DiPalma, D-Middletown, and Kevin Savage, Director of the Division of Developmental Disabilities, for their roles in negotiating the action plan.

Without the action plan, the state could have faced fines of up to $1.5 million a month for contempt of court for continued violations of the consent decree.

The ultimate goal is the systemic restructuring of the system so that those with intellectual and developmental disabilities can live the lives they want in their communities, consistent with the Olmstead decision of the U.S. Supreme Court, McConnell said. The Olmstead decision re-affirmed the Integration Mandate of the Americans With Disabilities Act.

Making a real difference in the lives of those protected by the consent decree “will be another heavy lift,” the judge said. “That’s a long-winded way of saying, good job; there’s a lot of work ahead of you.”

Both the monitor, A. Anthony Antosh, and a lawyer for the U.S. Department of Justice (DOJ), said they will be watching very closely to measure the real-life impact of the action plan on life circumstances of individual service recipients.

Victoria Thomas, the DOJ lawyer, said she and her colleagues in the civil rights division are “cautiously optimistic” that the action plan will achieve the goals of the consent decree by the time it is set to expire in 2024.

“Recent comments indicate that there are many people in Rhode Island that are not getting what they need, want, or are entitled to get” under the law, Thomas said.

Those eligible for services say “they want to be working,” Thomas said.

Families who “rely on day services to function” are essentially trapped,” she said. “They can’t go to work and in some cases can’t leave their homes.”

To focus on the state’s progress, the DOJ and the monitor will review data every 90 days to determine what services eligible persons receive and their duration, Thomas said.

“Rhode Island businesses are eager to hire, and people with developmental disabilities are eager to work,” she said. “The action plan has multiple strategies to do that,” both on a short-term and long-term basis, Thomas said.

Antosh, the court monitor, said the action plan responds to a years-long drive to stabilize and expand the private provider workforce which the state relies on to bring it into compliance with the consent decree, and more recently, a series of court orders spelling out what that effort should look like.

The one that sent ripples through the State House said the state wages must hit $20 an hour by 2024. The action plan says the state will deliver on that pay hike, along with an interim raise, from $15.75 to $18 an hour effective July 1, 2022.

McConnell said “the court’s role is not to tell state what it should do or to run the agency,” a reference with the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH.)

“The court’s role is to ensure compliance with the consent decree. The state, after many years, agreed it has systemically violated the rights of people with developmental disabilities All parties agreed the consent decree would be the vehicle to ensure (those) rights,” McConnell said.

Antosh, meanwhile, said the significant investment in funding higher wages will be accompanied by a shift in strategy for recruiting and retaining new staff to offset the fact that the traditional population interested in caregiving jobs is shrinking.

He said there will be a public-private partnership led by the Department of Labor and Training, the Community College of Rhode Island and other workforce and educational organizations. Together, they will re-define the roles of caregivers and creating targeted training programs, professional credentialling, and career ladders.

“A major strategy is to help people to achieve individual career goals,” Antosh said.

He explained other highlights of the action plan including an upcoming rate review, which he described as “the instrument” for changes that hopefully will create a better-functioning system.

Five consulting firms have bid for the job, and the state has committed to awarding the contract by November 1, with the work to be completed in a year’s time. It will include a reimbursement rate schedule that is indexed to the cost of living, Antosh said.

He said he will push to have a finished report sooner than that. The rate review, or portions of it, should be reflected in the next three budgets, he said.

In another change intended to stabilize financing, the state for the first time will include the developmental disabilities caseload in the semi-annual Caseload Estimating Conference, giving policy makers a realistic projection of developmental disability costs as a basis for budget preparations. The first such Caseload Estimating Conference will be later this month.

There will also be changes that will help increase individuals’ access to services by decreasing administrative burdens on providers. For example, the state plans to eliminate a requirement that staffers document their time individually in 15-minute increments for each person in their care, he said.

Another requirement on its way out is linking reimbursement to pre-determined staffing ratios based on each client’s general level of independence, or lack of it. These staffing ratios do not individualize needs, except for those with the most extreme disabilities, and do not take into account the amount of support necessary to carry out a particular task. Antosh said the complicated billing system will be replaced by two different rates.

The state has said the work on the administrative changes will be done by March 31.

Other innovations in the works will aim at increasing funding for transportation enabling the Rhode Island Public Transit Authority to become a Medicaid provider and by setting aside $2 million for the acquisition of technology for people with intellectual and developmental disabilities, Antosh said.

There are already specialized 400 apps available which aim at improving the quality of life for people with varying intellectual and developmental challenges, he said.

Kate Sherlock, the lawyer representing Antosh in recent negotiations, said the will to “get there” by restructuring the system “has been there all along, among consumers, their families, providers, and state officials, but change has been held back by a lack of funding.”

The action plan is a “significant step in the right direction,” she said. “We’ll be watching carefully to see what happens.”

To read the state’s action plan, click here.

To read the monitor’s memorandum on the action plan, click here.

RI Proposes DD Action Plan To Avoid Contempt Of Court

By Gina Macris

The state of Rhode Island would raise the pay of caregivers for adults with developmental disabilities to $20 by mid-2023 as part of an “action plan” submitted Tuesday, Oct. 19, to fend off a contempt hearing in federal court over continued violations of a 2014 consent decree mandating the integration of this population in their communities.

The contempt hearing, which had been scheduled to begin Oct. 18 and run through Oct. 22, was canceled last week without explanation by Chief Judge John J. McConnell, Jr., of the U.S. District Court. There previously had been indications the state was working on a settlement proposal.

The action plan also promised that workers would get an interim raise, from $15.75 an hour to $18 an hour, to take effect July 1, 2022, as well as the development of an “intensive” and coordinated statewide initiative involving the Department of Labor and Training, the Community College of Rhode Island, and other organizations to recruit and retain skilled candidates to fill gaps in the workforce necessary to support adults with developmental disabilities who want to be integrated into their communities.

In addition, a total of $12 million would be set aside for a “transformation fund” aimed at supporting private service providers as they go through the first two parts of a three-part transition period from a system originally framed around segregated group care to one that promotes individualized services in the community. Of the $12 million total, $2 million would be reserved to help families who self-direct their own programs, essentially acting as independent employers and program directors for staff serving individual loved ones.

The remaining $10 million would be divided into grants to enable provider agencies to begin shifting to integrated services during the next 12 months, with provisions for considering more funding to expand program innovations during a third phase.

In addition, the action plan commits the state to setting aside $2 million to help adults with intellectual and developmental challenges acquire technology. While smartphones and tablets have become ubiquitous, many adults with developmental disabilities do not have access to the internet.

Overall, the plan appears to conform to several orders issued by McConnell since the summer of 2020 to bring the state into compliance with the consent decree.

A permanent budgetary, operational, and bureaucratic framework for a new developmental disabilities system would emerge from a rate review study that is expected to begin in coming weeks. The Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, (BHDDH) plans to award the contract by Nov. 1. BHDDH originally required the work to be done in six months, but the action plan said the deadline will be December 1, 2022, a little more than a year from now.

The governor’s budget proposal for the fiscal year beginning July 1, 2022 (Fiscal Year 23) “will recognize” preliminary recommendations of the rate review consultants, and “the State will work in good faith to incorporate the reasonable recommendations set forth in the final rate review project” in the governor’s following budget proposal for the fiscal year beginning July 1, 2023 (Fiscal Year 24), the action plan says.

Because the state needs to expand the workforce and hike wages to deliver on the individualized, community-based supports required by the consent decree, reforms are expected to require a significant financial commitment by the General Assembly.

The upcoming rate review would add dollars and cents to the picture and include recommendations for reimbursement models that would stabilize the finances of provider agencies. Providers say the current fee-for-service model does not pay their actual costs, including free care often given to individuals while the agencies appeal service cuts.

The monetary changes and any new provider reimbursement model would have to be approved by the General Assembly. To move forward, the action plan also needs approval from the U.S. Department of Justice and the court..

To read the state’s action plan, click here.